107 AJIL Unbound 1 (2014)

handle is hein.journals/ajilunbo107 and id is 1 raw text is: 












KIOBEL AND THE LAW OF NATIONS


                                   By Zachary D. Clopton*

   Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort
suits by aliens for violations of the law of nations.1 Though debate certainly exists about the
method by which ATS-appropriate torts are identified,2 the Supreme Court has acknowl-
edged that the substantive content of ATS causes of action is derived from the law of nations.3
In Kiobelv. RoyalDutch Petroleum Co., the Supreme Court justices addressed not the substance
of ATS cases but the reach of that statute.4
   At least at the time of the Judiciary Act of 1789, the law of nations included not only sub-
stantive international law but also international jurisdictional law.5 Like the substantive law of
nations that provides ATS causes of action, international jurisdictional law is an important part
of the international legal order. And yet, in a decision about the reach of law-of-nations tort
law-and in the search for post-Kiobel alternatives-too little attention has been paid to the
jurisdictional branch of the law of nations. This essay briefly summarizes an approach to law-
of-nations torts that tracks international jurisdictional law, which is broader than current ATS
doctrine in some respects and narrower in others.

Prescriptive Jurisdiction

   One aspect of international jurisdictional law potentially relevant to law-of-nations cases
is the international law of prescriptive jurisdiction. Prescriptive jurisdiction describes the
international-law limits of the reach of a state's laws.' As others have argued, the limits
of prescriptive jurisdiction are not technically the right framework for the ATS. The ATS is a

    Public Law Fellow, University of Chicago Law School.
  1 28 U.S.C. 1350 (The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.).
  2 The Supreme Court has required that any claim based on the present-day law of nations to rest on a norm of
international character accepted by the civilized world and defined with a specificity comparable to the features of
the 18th-century paradigms we have recognized. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
  3 Kiobelv. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1663 (2013); Sosa, 542 U.S. at 732. In Kiobel, for exam-
ple, the plaintiffs brought international law claims for crimes against humanity, torture and cruel treatment, and
arbitrary arrest and detention. 133 S.Ct. at 1663.
  ' Kiobel, 133 S.Ct. 1659.
  5 See, e.g., Stewart Jay, The Status of the Law of Nations in Early American Law, 42 VAND. L. REV. 819,
821-22 (1989). For a summary of U.S. interpretation of international jurisdictional law, see 1 RESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 401- 88 (1987) [hereinafter RESTATE-
MENT].
  6 Prescriptive (or legislative) jurisdiction is defined as the authority of a state to make its law applicable to the
activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive
act or order, by administrative rule or regulation, or by determination of a court. RESTATEMENT, supra note 5,
401 (a).

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